Regarding the Equal Pay Act, in its proposed formulations, does it require that employers pay all employees the same for the same job? Or would someone with more seniority be paid more than someone with less seniority, even though they are doing the same thing? And, would it require employers to pay men the same as other men for the same job?

Often, what one gets paid for a given job is a function of how badly the employer needs an employee at the time, how good the employer thinks the new employee will be, how well he knows the new employee, negotiation skills, people skills, the nerve to ask for more money and call bluffs, and all sorts of things.

It seems to me that the Equal Pay Act might have the unintended consequence of requiring all employers to set a wage for each job that is the same for all employees regardless of quality or job performance. Because, if pays start to become unequal then employees will inevitably challenge the pay structure as unequal and claim that any alleged reason offered by the employer is a mere pretext.

Just some thoughts I had which I hadn’t heard expressed anywhere else before.

Actually, those questions have been addressed over decades (one of the reasons why these additional acts continue to be fought over today):

‘Background on the Equal Pay Act of 1963: This law requires that men and women be given equal pay for equal work in the same place of business or establishment. The jobs do not have to be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal. Pay differentials are permitted only when they are based on seniority, merit, quantity or quality of production, or a factor other than sex. It is important to note that when correcting a pay differential, no employee’s pay may be reduced. Instead, the pay of the lower-paid employee(s) must be increased. While laudable in its goals, the Equal Pay Act of 1963 has never lived up to its promise to provide “equal pay for equal work.”‘

“Because, if pays start to become unequal then employees will inevitably challenge the pay structure as unequal and claim that any alleged reason offered by the employer is a mere pretext.” — This is what is essentially being argued now since Equal Pay has been on the books for decades. The Lily Ledbetter Fair Pay Act of 2009 was addressing statue of limitations issues on lawsuits for past discrimination. This current fight is over issues of application of the law, not its interpretation.

However, these case necessarily involve questions of proof that are quite thorny. If there are 10 men and 10 women in a department doing substantially similar work. and 7 of the men make more money, because they are deemed by the employer to be “go getters” and they have demonstrated a willingness to work longer hours, and have demonstrated success, etc. There would then be males making more than females for the same work.

While the employer has an “argument” that there were non-sex-based criteria, the women suing for equal pay will argue that it’s because they’re women that they’re being paid less. The employer then has to pay $50,000 to $100,000 in legal fees to defend the case, and there is always a chance the jury will not accept the offered legitimate business reason.

That places a huge pressure to “normalize” wages, and conduct head counts, so that no matter what, the numbers come out 50-50 sex wise, because that is the only way to avoid the lawsuit in the first place.

It may be just the nature of the beast, of course.

I hear many other arguments, too, like — the reason those men (in my example) work longer hours, etc., is because of our patriarchal culture which demands more of women at home, and the fact that women have the babies, etc. Those kinds of arguments result in performance not mattering, at least not objectively, because the argument goes that the men have an advantage over women in the workplace, and therefore working longer hours and other workplace performance issues are a result of an inherent unfairness to begin with.